Giery v. Presbyterian Hospital

199 A.D.2d 3, 604 N.Y.S.2d 97, 1993 N.Y. App. Div. LEXIS 11185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about October 25, 1991, inter alia, striking plaintiff’s complaint unless within 15 days he responded to defendant-respondent’s outstanding discovery requests and furnished a further bill of particulars responsive to defendant-respondent’s demand, unanimously affirmed, without costs. Plaintiffs time to comply is extended to 30 days from the date of this order.

The conditional order of dismissal, as against the movant, was within the court’s broad discretion where, as here, plaintiff failed repeatedly and without adequate excuse to fully comply with the prior discovery orders (Zletz v Wetanson, 67 NY2d 711, 713). Specifically, there can be no excuse for plaintiffs repeated failure to produce medical bills which support his claim. In the event plaintiff establishes that no tax returns were filed for the relevant period, and that compliance in that respect is therefore impossible, the IAS Court will take appropriate measures in further proceedings. Concur—Murphy, P. J., Carro, Ross and Asch, JJ.